New Jersey, California, and Hawaii tend to be the three worst states that constantly pop up in the pages of Bearing Arms. All the ink in the world will never be able to completely cover the infringements to freedom in these states. Many look forward to a day when such coverage becomes few and far between. But, right now? Hawaii is at it again with their awful policies that victimize law abiding citizens. Just because Hawaii is an island state, does not mean they get to ignore the Constitution and Bill of Rights. A recent announcement from Hawaii Firearms Coalition (HIFCO) discusses the latest filing.
Honolulu Police Department is Being Sued Again for Violating Second Amendment Rights.
Hawaii Firearms Coalition lawyers Alan Beck and Kevin O’Grady filed a lawsuit today in the Hawaii District Federal Court. The lawsuit says that HPD’s policies and procedures for mental health disqualifications are a violation of the Second and Fourteenth Amendments.
Currently, anytime a person applies for a permit to acquire a firearm, they must provide a waiver allowing HPD to contact medical professionals. The form informs your doctor that you are purchasing a firearm and requires them to provide a determination regarding whether you have been treated for any unlisted mental health conditions.
HPD uses this information from your doctor to determine your mental health status. At no point during the process does HPD actually confirm what the mental condition is or how it was diagnosed. As such, something as simple as seeing a marriage or grief counselor is used to deny permit applications.
This kind of unconstitutional garbage is not completely unheard of. California, for example, hangs an “optional” mental health evaluation over the heads of concealed carry applicants and New Jersey requires applicants to submit a mental health records release to the state in order to obtain a Firearm ID Card and or Pistol Purchaser’s Permit. On more than one occasion this situation has been known to foul up someone in the Garden State, even if they don’t have any of the statutory disqualifiers (see PZ and Rachlin). An issuing authority can just say “no” based on the “interest of public safety”.
Honolulu has their own onerous process if an individual gets caught up in the mental health blackhole.
Still, want to own a firearm after being denied? HPD will require you to get a medical clearance letter saying that you are no longer adversely affected by the unlisted condition. Oftentimes this will result in an out-of-pocket expense in the hundreds of dollars in order to be cleared of a medical condition that should never have excluded you from acquiring a permit in the first place.
There are many reasons why this is unconstitutional, but to boil it down into basic terms, if HPD believes you have a mental health condition, you can’t own a firearm until you spend hundreds of dollars proving your eligibility.
This policy has affected thousands of people who are not and have never been disqualified from legally owning a firearm. As such, Hawaii Firearms Coalition fully supports this lawsuit and intent and looks forward to the court’s decision.
It should always be the burden of the issuing authority to prove someone’s disqualification. In these cases, in particular, we’re talking about a constitutional right and one’s own medical information. If things like “medical procedures” or let’s say things done to one’s own body being their own choice, are vaguely protected by the 14th Amendment, then clearly a person’s medical history is as well in this context.
Plaintiff is a City and County of Honolulu (“City”) resident, who the City, through its own policy and/or its application of State law, will not allow to own firearms without medical clearance due to treatment for mental health. Plaintiff’s claim is that this is unconstitutional on Second Amendment, Due Process and Equal Protection grounds. The City’s policy and/or application of state law is additionally unconstitutional because it requires the disclosure of private information. In the alternative, the statute itself is unconstitutionally vague. Plaintiff faces deprivation of his constitutional rights and is entitled to an immediate injunction to enjoin the City from its unconstitutional conduct and the enforcement of the statute itself.
Although Heller in dicta stated that mental incompetency may, presumptively, be a reason to ban gun ownership, Heller firmly placed the burden on the state to establish incompetency in the first instance. Moreover, federal and state statutes banning gun ownership on this basis have set incredibly high objective standards – proof of commitment along with its concomitant notice and due process procedures.
I reached out to one of the attorneys who’s representing the plaintiffs, Kevin O’Grady, and he had the following to note about the filing of this suit:
The state of Hawaii is violating the second amendment rights of residents by requiring them to provide documentation to the police that is impossible to obtain.
This lawsuit brings up many questions about the eligibility to own firearms, the level of privacy which we’re to be afforded as freemen of the United States, our right to be innocent unless proven otherwise, and who owns the burden to prove or disprove said eligibilities. Even as supporters of the Second Amendment, these questions might be swirling around in our heads. With anything related to so-called “public safety” and any situation that’s supposed to serve in said interests, if individuals are so dangerous that they’re not supposed to have firearms, then why are they walking among our children? There’s a lot to think about.
The other side of the coin involves the many failures of the systems we have in place that we’ve been sold as being for the safety of the public at large. The systems we have in essence don’t quite work, otherwise some of the more high profile active shooter events would have not and will not, occur.
We can have this debate until the sun comes up. In this case it’s not a stretch to tell the government it’s their duty to disprove one’s eligibility to own a firearm rather than the individual’s responsibility to prove they’re not disqualified. If we’re truly innocent until proven guilty in the Union, clearly that logic applies here. Looking forward to seeing Honolulu getting slapped around on this one. We’ll keep our fingers on the pulse here and be sure to update with the latest news.